United States of America, Plaintiff-appellee, v. Gsaac Gorge Pinto-mejia, Orlando Espinosa Sanchez, Jorgeeliecer Cordoba- Lezcano, Luis Ancizar Castenad-garjales,luis Alfonso Barker-michel, Carlos Osorio-alvarez, Luisfrancisco Mayorga, Jose Felix Angulo-quinones, Robertonunez-riasco, Blas Enrique Vargas-rios, Euclidezvello-garcia, Defendants- Appellants, 728 F.2d 142 (2d Cir. 1984)

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U.S. Court of Appeals for the Second Circuit - 728 F.2d 142 (2d Cir. 1984)

Feb. 15, 1984

Before KEARSE, PIERCE and JOHN W. PECK* , Circuit Judges.



Appellant Vargas-Rios having filed a petition for rehearing with a suggestion for rehearing en banc on October 28, 1983, and Appellee having filed a petition for rehearing with a suggestion for rehearing en banc on November 23, 1983; and

The Court having given due consideration to both petitions; and USA v. Pinto-Mejia, etc., No. 84-1412, etc.

The Court having noted in both petitions an apparent misinterpretation in one respect of the Court's opinion of October 14, 1983, 720 F.2d 248, it is now

ORDERED as follows:

(1) In order to clarify that the opinion did not mean to imply that a defendant cannot concede, or otherwise waive his right to contest, a particular fact that is essential to the court's jurisdiction, the final sentence of part II.A. of the opinion, at 255, is modified to read as follows:

Since it is a responsibility of the appellate court no less than of the trial court to see to it that the jurisdiction of the trial court, which is defined and limited by statute, is not exceeded, Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L. Ed. 126 (1908), and since the stipulation is construed infra to preserve issues of fact and law arising from the stopping and boarding of the RICARDO as well as the seizure of marijuana, we will entertain on appeal defendants' challenge to the court's jurisdiction.

(2) In all other respects the petitions for rehearing are hereby denied.


Of the United States Court of Appeals for the Sixth Circuit, sitting by designation